People v. Lopez-Vinck ( 2021 )


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  • Filed 9/15/21
    CERTIFIED FOR PARTIAL PUBLICATION*
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                 D077029
    Plaintiff and Respondent,
    v.                                   (Super. Ct. No. SCS304526-02)
    ALFRED LOPEZ-VINCK,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Roderick W. Shelton, Judge. Remanded for correction of minute order and
    abstract of judgment; judgment affirmed.
    Ava R. Stralla, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.
    Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
    Respondent.
    *      Pursuant to California Rules of Court, rule 8.1110, this opinion is
    certified for publication with the exception of parts II and III.A–D.
    I.
    INTRODUCTION
    Defendant Alfred Lopez-Vinck appeals from a judgment entered after a
    jury convicted him of three counts of robbery and three counts of assault with
    a deadly weapon. Lopez-Vinck and his girlfriend and co-defendant Misty
    Lynn Probert were both convicted of charges arising from an incident in
    which Probert shoplifted various items from a Kohl’s store. After Probert
    exited the store and was approached by three loss prevention officers, Lopez-
    Vinck, got out of his vehicle, took out a knife, pointed it in the direction of the
    loss prevention officers, and moved toward them while aggressively yelling at
    them to back up. Probert walked past the loss prevention officers while still
    in possession of the stolen merchandise, got into Lopez-Vinck’s car, and the
    two drove off together.
    On appeal, Lopez-Vinck contends that there is insufficient evidence to
    support his convictions for assault with a deadly weapon, arguing that he did
    not engage in any act that was likely to cause injury and he did not have the
    present ability to injure anyone.1
    Lopez-Vinck also argues that his convictions for assault with a deadly
    weapon must be modified to convictions for the lesser offense of brandishing
    because, he asserts, brandishing is a more specific statute that applies to his
    conduct and preempts the assault statute.
    In addition, Lopez-Vinck contends that the trial court erred, and
    violated his right to due process, by imposing various fines and fees without
    1      Probert was tried jointly with Lopez-Vinck and was convicted of three
    counts of robbery. Probert separately appealed from the judgment, and this
    court affirmed. (See People v. Probert (Oct. 15, 2020, D075716) [nonpub.
    opn.].)
    2
    first finding that he had the ability to pay them. Finally, he asserts that the
    minute order and abstract of judgment must be corrected to reflect the court’s
    oral pronouncement with respect to striking his prison prior.
    We conclude that only Lopez-Vinck’s final contention has merit. We
    therefore remand for the trial court to correct the minute order and abstract
    of judgment to reflect that the court struck Lopez-Vinck’s prison prior. We
    also conclude that a recent ameliorative amendment to the law entitles
    Lopez-Vinck to have vacated any portion of the fee imposed pursuant to
    Government Code section 29550.1 that remained unpaid as of July 1, 2021.
    We therefore vacate the unpaid balance of this fee, and otherwise affirm the
    judgment as modified.
    II.
    FACTUAL AND PROCEDURAL BACKGROUND
    A. Factual background
    1. The prosecution
    On the afternoon of September 21, 2018, Probert entered a Kohl’s
    department store. Kohl’s loss prevention officer Lisa H. noticed Probert
    exhibiting behavior consistent with shoplifting, so she began to monitor
    Probert as she walked through the store. Lisa H. observed Probert walk to
    the juniors’ department, quickly grab five pairs of jeans without looking at
    the prices, enter a fitting room and emerge a few minutes later holding only
    her purse and one pair of jeans. Lisa H. communicated with another loss
    prevention officer, Jenny R., regarding Probert. When Jenny R. checked the
    fitting room that Probert had used, she found that three, not four, pairs of
    jeans had been left there. After Probert left the fitting room area, she went to
    the girls’ department, where she took a decorative bow and clipped it onto her
    jacket. While in the girls’ department, Probert put a pair of children’s green
    3
    shorts inside her purse; at some point, she picked up a pair of pink shorts,
    which she added to items that she was holding in her hands.
    Probert eventually headed toward the store’s registers. She walked up
    to a register and paid for the pair of pink shorts. She did not pay for the bow
    that she had affixed to her jacket, nor did she pay for the items that she had
    concealed in her purse.
    As soon as Probert walked out of the store, three loss prevention
    officers approached her. Loss prevention officer Hector H. introduced
    himself, showed Probert his employee badge, and informed her that he
    “ ‘work[s] for Kohl’s loss prevention.’ ” He told Probert that he wanted to talk
    to her inside the loss prevention office in the store. Probert was
    “dismiss[ive]” of the loss prevention officers and tried to continue walking
    past them while they were talking to her. The loss prevention officers had
    arranged themselves in such a way as to create a “human barrier” in an
    attempt to prevent Probert from passing them, and requested that Probert
    give them the items that she had taken from the store. They did not
    threaten, raise their voices at, or make any physical contact with Probert.
    Lopez-Vinck had pulled up in his car in front of the store, and jumped
    out of the car when the loss prevention officers confronted Probert. He was
    holding a pocketknife that had a three-inch blade exposed. Lopez-Vinck
    walked toward the loss prevention officers. He appeared “very aggressive”
    and yelled, ‘‘ ‘Back the fuck up.’ ” Lopez-Vinck was holding the knife with one
    hand. The knife blade was pointed in the general direction of the loss
    prevention officers. Lopez-Vinck moved toward the loss prevention officers.
    The loss prevention officers estimated that Lopez-Vinck came within about
    6 to 15 feet of them. The loss prevention officers, who had been standing
    between Probert and Lopez-Vinck’s car, immediately moved out of Probert’s
    4
    way in fear. Probert made her way directly to Lopez-Vinck’s car and said
    nothing. As Probert was walking to the car, the loss prevention officers asked
    her to “[a]t least give us our stuff back.” Probert continued to ignore the loss
    prevention officers, and got into the car while still in possession of the stolen
    items. Lopez-Vinck did not say anything to Probert as he held the knife and
    Probert walked past him.
    After Probert got into the car, Lopez-Vinck remained outside the car for
    another 30 seconds, “puff[ing] his chest” and yelling at the loss prevention
    officers, still holding the knife in his hand but backing up slightly. Hector
    said to Lopez-Vinck, “[I]t’s just merchandise . . . [s]he should just give it back.
    [¶] . . . [¶] . . . [I]t’s not that serious . . . it doesn’t have to be like that. If you
    could just cooperate.” Hector asked Lopez-Vinck, “Why make it a big deal?”
    Lopez-Vinck got back into his car and drove off with Probert and the stolen
    merchandise.
    2. The defense case
    Lopez-Vinck testified in his own defense. According to Lopez-Vinck, he
    had no idea that Probert had stolen anything from the store; rather, he said
    that he believed that the loss prevention officers, who were dressed in
    plainclothes, were trying to mug Probert as she exited the store.
    Lopez-Vinck testified that, on the day these events took place, he and
    Probert had stopped at Kohl’s to buy a change of clothes for their young
    daughter, who had wet herself in her car seat. Probert went inside the store,
    and Lopez-Vinck stayed in the car with their daughter. After about
    30 minutes, Lopez-Vinck pulled out of his parking spot and drove toward the
    front entrance to the store. Lopez-Vinck said that he had assumed that
    Probert would be coming out of the store at around that time. He waited for
    her in front of the store with the car running.
    5
    Lopez-Vinck testified that a few minutes after he drove to the front of
    the store, Probert walked out of the store and was immediately confronted by
    two individuals, one male and one female, who were dressed in black. The
    pair blocked Probert’s path. Lopez-Vinck said that he saw “the boy” reach for
    the Kohl’s bag that Probert was holding. A third individual “came out of
    nowhere” and blocked Lopez-Vinck’s view of Probert. Lopez-Vinck testified
    that he thought that Probert was being mugged. He grabbed his pocketknife
    from the compartment in the passenger side door and got out of the car.
    Lopez-Vinck approached the individuals who were standing between Probert
    and the vehicle and told them to “ ‘[b]ack the fuck up’ ” while he held the
    knife “up in the air.” The individuals backed away at that point.
    As soon as the individuals scattered, Probert walked to the car and got
    in while Lopez-Vinck remained outside of the car for another 30 seconds,
    yelling at the individuals because they “were still coming toward [him].”
    Lopez-Vinck acknowledged that he did not call 911 during the incident.
    Once Lopez-Vinck returned to the car and he and Probert began driving
    away, he asked Probert who those people were and what they were talking
    about. According to Lopez-Vinck, Probert told him that those individuals
    worked for Kohl’s and thought that she had stolen something from the store.
    Probert denied having stolen anything. Lopez-Vinck said that he stopped the
    car and had Probert empty her purse, pockets, and the Kohl’s bag to prove to
    him that she had not stolen anything. Lopez-Vinck testified that Probert
    showed him the receipt for the pink shorts, and that he did not see any stolen
    items.
    Lopez-Vinck testified that he did not learn that Probert had actually
    shoplifted merchandise from Kohl’s until he was interviewed by a detective
    weeks after the incident. During that interview, after being told that Probert
    6
    had in fact shoplifted some items, Lopez-Vinck told the detective that he had
    forced Probert to go into the store by holding a gun to her head and
    threatening to cut her throat if she did not go inside. At trial, Lopez-Vinck
    claimed that he had not actually threatened Probert, despite what he had
    told the detective, and indicated that he had lied to the detective in order to
    protect Probert.
    B. Procedural background
    The San Diego District Attorney charged both Probert and Lopez-Vinck
    with three counts of robbery (Pen. Code,2 § 211; counts 1–3), and also charged
    Lopez-Vinck with three counts of assault with a deadly weapon (§ 245, subd.
    (a)(1); counts 4–6). With respect to the robbery counts, the information
    alleged that Lopez-Vinck personally used a deadly and dangerous weapon—a
    knife— in the commission of the offenses.3 The information also alleged that
    Lopez-Vinck had suffered two prior felony convictions (§ 1203, subd. (e)(4))
    and one prison prior (§§ 667.5, subd. (b), 668).
    After a joint trial, a jury found Lopez-Vinck guilty on all of the charges,
    and found true all of the related personal use enhancement allegations.
    Lopez-Vinck admitted that he had two prior felony convictions and a prison
    prior.
    2     Further statutory references are to the Penal Code unless otherwise
    indicated.
    3     The information also included a personal use of a deadly weapon
    allegation in connection with count 6, one of the assault counts. However,
    that allegation was dismissed and the jury was not asked to determine the
    truth of that allegation.
    7
    At sentencing, the trial court sentenced Lopez-Vinck to three years in
    state prison. Lopez-Vinck filed a notice of appeal, which this court deemed
    timely.
    III.
    DISCUSSION
    A. Substantial evidence supports Lopez-Vinck’s convictions for assault with
    a deadly weapon
    Lopez-Vinck contends that there is insufficient evidence to support a
    finding that his conduct satisfied all of the elements of the offense of assault
    with a deadly weapon. Specifically, Lopez-Vinck claims that he did not
    commit an act that would directly and probably cause injury, and he further
    contends that, given the distance between him and the loss prevention
    officers, he lacked the present ability to inflict injury on any of them.
    “The crime of assault with a deadly weapon has two components:
    ‘(1) the assault, and (2) the means by which the assault is committed.’ ” (In re
    Raymundo M. (2020) 
    52 Cal.App.5th 78
    , 85 (Raymundo M.).) “An assault is
    an unlawful attempt, coupled with a present ability, to commit a violent
    injury on the person of another.” (§ 240.) To commit an assault, the
    defendant must attempt an act that, if successful, “ ‘will probably and directly
    result in injury to another.’ ” (People v. Wyatt (2010) 
    48 Cal.4th 776
    , 780
    (Wyatt).) The attempted act must be coupled with a present ability to commit
    a violent injury, that is, the defendant must have “ ‘attained the means and
    location to strike immediately.’ ” (People v. Chance (2008) 
    44 Cal.4th 1164
    ,
    1168 (Chance).) “In this context, however, ‘immediately’ does not mean
    ‘instantaneously.’ It simply means that the defendant must have the ability
    to inflict injury on the present occasion.” (Ibid., fn. omitted.) Thus,
    immediacy means that the defendant has “equip[ped] and position[ed]
    8
    himself to carry out a battery . . . , even if some steps remain to be taken, and
    even if the victim or the surrounding circumstances thwart the infliction of
    injury.” (Id. at p. 1172.) “Numerous California cases establish that an
    assault may be committed even if the defendant is several steps away from
    actually inflicting injury, or if the victim is in a protected position so that
    injury would not be ‘immediate,’ in the strictest sense of that term.” (Id. at
    p. 1168.) Finally, “[a]s used in section 245, subdivision (a)(1), a ‘deadly
    weapon’ is ‘any object, instrument, or weapon which is used in such a manner
    as to be capable of producing and likely to produce, death or great bodily
    injury.’ ” (People v. Aguilar (1997) 
    16 Cal.4th 1023
    , 1028–1029 (Aguilar).)
    Lopez-Vinck contends that the evidence is insufficient to support his
    conviction for assault with a deadly weapon because he did not commit any
    act likely to inflict injury on the loss prevention officers and because he
    lacked the present ability to commit an injury, given that he was several feet
    away from them. “In determining whether the evidence is sufficient to
    support a conviction . . . , ‘the relevant question is whether, after viewing the
    evidence in the light most favorable to the prosecution, any rational trier of
    fact could have found the essential elements of the crime beyond a reasonable
    doubt.’ [Citations.] Under this standard, ‘an appellate court in a criminal
    case . . . does not ask itself whether it believes that the evidence at the trial
    established guilt beyond a reasonable doubt.’ [Citation.] Rather, the
    reviewing court ‘must review the whole record in the light most favorable to
    the judgment below to determine whether it discloses substantial evidence—
    that is, evidence which is reasonable, credible, and of solid value—such that a
    reasonable trier of fact could find the defendant guilty beyond a reasonable
    doubt.’ [Citation.]” (People v. Vy (2004) 
    122 Cal.App.4th 1209
    , 1224, italics
    omitted.)
    9
    With respect to Lopez-Vinck’s contention that the evidence does not
    support a finding that he engaged in an act that was likely to result in injury,
    viewing the evidence in the light most favorable to the verdict, the evidence
    demonstrates that Lopez-Vinck displayed a knife with an exposed blade while
    he was within six to fifteen feet of the three loss prevention officers. Lopez-
    Vinck raised the knife to shoulder or head height with the blade pointing
    toward the loss prevention officers, assumed an aggressive posture and yelled
    at the loss prevention officers to “ ‘[b]ack the fuck up.’ ” He was moving
    toward the loss prevention officers while holding the knife in this manner.
    As Lopez-Vinck approached the loss prevention officers, they backed away in
    fear. This evidence demonstrates that Lopez-Vinck was signaling that he
    was ready to, and could, strike at the loss prevention officers, and is sufficient
    to support the jury’s finding that Lopez-Vinck engaged in an act that, if it had
    been successful, would “ ‘probably and directly result in injury to another.’ ”
    (Wyatt, supra, 48 Cal.4th at p. 780.)
    These factual circumstances are similar to the facts in People v. Yslas
    (1865) 
    27 Cal. 630
     (Yslas). In Yslas, the defendant approached to within
    seven or eight feet of the victim with a raised hatchet in his hand. The victim
    escaped any injury by running to the next room and locking the door. (Id. at
    p. 631.) As the Supreme Court has noted, the defendant in Yslas “committed
    assault, even though he never closed the distance between himself and the
    victim, or swung the hatchet.” (Chance, supra, 44 Cal.4th at p. 1174, citing
    Yslas, supra, 27 Cal. at pp. 631, 633–634, italics added.) In this case,
    although Lopez-Vinck did not reach any of the loss prevention officers, he
    moved toward them, knife raised, and, viewing the evidence in the light most
    favorable to the verdict, came within six feet of them; they retreated in order
    to escape him. This is sufficient to support a finding that Lopez-Vinck
    10
    committed an assault. (See, e.g., Chance, 
    supra, at p. 1168
     [“[A]n assault
    may be committed even if the defendant is several steps away from actually
    inflicting injury”]; Aguilar, 
    supra,
     16 Cal.4th at p. 1028 [“One may commit an
    assault without making actual physical contact with the person of the
    victim”]; Raymundo M., supra, 52 Cal.App.5th at pp. 82–83, 87–88 [juvenile’s
    act of lunging and running toward the victim from 10 to 12 feet away, rather
    than “merely brandish[ing] the knife while standing still,” supported
    reasonable finding that the juvenile “actually used the knife in a way capable
    of producing, and likely to produce, death or great bodily injury”].)
    The sufficiency of the evidence is not undermined by the fact that the
    testimony did not establish that Lopez-Vinck “swung, jabbed, or deployed
    the knife in any way,” as Lopez-Vinck contends. The juvenile in Raymundo
    M. made a similar argument for reversal of the true finding that he had
    committed an assault with a deadly weapon. (Raymundo M., supra,
    52 Cal.App.5th at p. 89.) The Raymundo court explained, “[C]ourts have
    held that an assault with a deadly weapon can occur even when the
    defendant never swings the weapon.” (Ibid., citing Yslas, supra, 27 Cal. at
    pp. 631, 633–634; Chance, 
    supra,
     44 Cal.4th at p. 1174; People v. Bernal
    (2019) 
    42 Cal.App.5th 1160
    , 1168 [affirming conviction for assault with a
    deadly weapon where the defendant held up a knife to the victim and asked,
    “ ‘Do you want to do this?’ ”].)
    This same evidence constitutes substantial evidence that Lopez-Vinck
    had the present ability to cause injury. After emerging from the car, Lopez-
    Vinck started to close the distance between himself and the loss prevention
    officers, walking toward them in a menacing manner and coming as close as
    six feet from them. Again, the “present ability” element “is satisfied when ‘a
    defendant has attained the means and location to strike immediately’ ” and
    11
    for this purpose, “ ‘immediately’ . . . simply means that the defendant must
    have the ability to inflict injury on the present occasion.” (Chance, 
    supra,
    44 Cal.4th at p. 1168.) Thus, “present ability” may exist “even if the
    defendant is several steps away from actually inflicting injury, or if the
    victim is in a protected position so that injury would not be ‘immediate,’ in
    the strictest sense of that term.” (Ibid.) The fact that the loss prevention
    officers backed away from Lopez-Vinck, and thereby maintained some
    distance between themselves and him, does not mean that Lopez-Vinck
    lacked the present ability to cause injury. (See, e.g. In re B.M. (2018)
    
    6 Cal.5th 528
    , 537 [“[A]n aggressor should not receive the benefit of a
    potential victim fortuitously taking a defensive measure or being removed
    from harm’s way once an assault is already underway”].)
    In sum, the jurors could have reasonably concluded that Lopez-Vinck’s
    conduct in raising a knife in a striking position, approaching the victims with
    the knife pointed toward them, and yelling at them to “back the fuck up”
    while maintaining an aggressive stance and closing the distance between
    them, causing the victims to back away to escape his approach, constituted
    the commission of an assault with a deadly weapon.
    B. The Williamson rule does not require that Lopez-Vinck’s assault
    convictions be modified to the lesser offense of brandishing
    Lopez-Vinck contends that, in the event that this court rejects his
    sufficiency of the evidence argument, his assault with a deadly weapon
    convictions must nonetheless be reversed and modified to the misdemeanor
    offense of brandishing a deadly weapon. Lopez-Vinck claims that the conduct
    constituting the offense of assault with a deadly weapon is prohibited under
    the more “specific” offense of brandishing, which carries a less severe penalty,
    and that the brandishing statute therefore controls. Lopez-Vinck’s argument
    12
    is “premised on a doctrine often referred to as the Williamson rule, based on
    [the Supreme Court’s] decision in In re Williamson (1954) 
    43 Cal.2d 651
    , 654
    (Williamson). Under the Williamson rule, if a general statute includes the
    same conduct as a special statute, the court infers that the Legislature
    intended that conduct to be prosecuted exclusively under the special statute.
    In effect, the special statute is interpreted as creating an exception to the
    general statute for conduct that otherwise could be prosecuted under either
    statute.” (People v. Murphy (2011) 
    52 Cal.4th 81
    , 86.) “[T]he Williamson
    preemption rule is applicable (1) when each element of the general statute
    corresponds to an element on the face of the special statute, or (2) when it
    appears from the statutory context that a violation of the special statute will
    necessarily or commonly result in a violation of the general statute.” (People
    v. Watson (1981) 
    30 Cal.3d 290
    , 295–296 (Watson).) It is clear that the
    Williamson rule does not apply when “a felony statute requires a more
    culpable mental state than a misdemeanor statute proscribing the same
    behavior.” (Hudson v. Superior Court (2017) 
    7 Cal.App.5th 999
    , 1007.)
    “In Williamson, for example, the defendant was convicted under the
    general conspiracy statute, Penal Code section 182, of conspiring to commit
    the crime of contracting without a license in violation of section 7028 of the
    Business and Professions Code. A violation of Penal Code section 182 was
    punishable as either a misdemeanor or a felony. The defendant argued that
    his conduct was punishable only under a special statute, Business and
    Professions Code former section 7030 [citation], which made it a
    misdemeanor to ‘conspire[ ] with another person to violate any of the
    provisions of this chapter.’ Th[e Supreme Court] agreed. [The Supreme
    Court] explained, ‘To conclude that the punishment for the violation of
    section 7030 of the Business and Professions Code is stated in section 182 of
    13
    the Penal Code, which deals with conspiracies in general, would be
    inconsistent with the designation of the particular conspiracy as a
    misdemeanor.’ (Williamson, supra, 43 Cal.2d at p. 655; see also People v.
    Gilbert, supra, 1 Cal.3d at p. 481 [prosecution for theft barred by special
    statute prohibiting use of false statement to obtain welfare, because ‘any
    conduct which violated [the welfare fraud statute] would also constitute a
    violation of the theft provision of the Penal Code’].)” (People v. Murphy (2011)
    
    52 Cal.4th 81
    , 86–87.)
    Setting aside the open question of whether a challenge made pursuant
    to Williamson may be forfeited given Lopez-Vinck’s failure to raise this issue
    in the trial court, we conclude that Lopez-Vinck’s contention fails on its
    merits.4 With respect to the question whether the elements of the “general
    statute” correspond to the elements of the “special statute” (Watson, supra,
    30 Cal.3d at pp. 295–296), we conclude that they do not. Lopez-Vinck
    contends that the “general statute” in this situation is section 245,
    subdivision (a), the statute outlining the offense of assault with a deadly
    weapon, while the “special statute” is section 417, the statute outlining the
    offense of brandishing. Section 245, subdivision (a) prohibits an “assault
    upon the person of another with a deadly weapon or instrument other than a
    firearm.” As we have noted, an “assault” is defined as “an unlawful attempt,
    coupled with a present ability, to commit a violent injury on the person of
    another.” (§ 240.) Section 417, subdivision (a) provides that “[e]very person
    who, except in self-defense, in the presence of any other person, draws or
    exhibits any deadly weapon whatsoever, other than a firearm, in a rude,
    4     The People assert that this contention has been forfeited, but concede
    that there remains an open question whether a challenge based on the
    Williamson rule can be forfeited.
    14
    angry, or threatening manner, or who in any manner, unlawfully uses a
    deadly weapon other than a firearm in any fight or quarrel is guilty of a
    misdemeanor . . . .” It is clear from an examination of the elements of these
    two offenses that their elements do not correspond. (See People v. Escarcega
    (1974) 
    43 Cal.App.3d 391
    , 398 [“Obviously an assault with a deadly weapon
    may be perpetrated without drawing or exhibiting [the deadly weapon] in a
    rude, angry, or threatening manner, or using it in a fight or quarrel”]; see
    also People v. Torres (1957) 
    151 Cal.App.2d 542
    , 544–545 [“An assault with a
    deadly weapon can be committed without violating any provision of Penal
    Code, section 417, as by firing a gun through a coat pocket without either
    drawing or exhibiting the weapon and without then being engaged in a fight
    or quarrel”].)
    With respect to the second test—i.e., whether “it appears from the
    statutory context that a violation of the special statute will necessarily or
    commonly result in a violation of the general statute” (Watson, supra,
    30 Cal.3d at pp. 295–296)—we conclude that this test also is not met. Again,
    the question is whether, if one commits a brandishing, that individual will
    necessarily or commonly also violate Penal Code section 245. We cannot say
    that the commission of a brandishing will necessarily or commonly result in
    an assault with a deadly weapon. Brandishing and assault with a deadly
    weapon are two different offenses, with different elements that overlap only
    in certain situations. There are numerous possible scenarios in which a
    person could exhibit a deadly weapon in a rude or threatening manner
    without also attempting to commit a violent injury on another person with
    the weapon while having the present ability to inflict injury. We therefore
    reject Lopez-Vinck’s contention that his conviction for assault with a deadly
    weapon, which was based on evidence demonstrating that he aggressively
    15
    moved toward the loss prevention officers, holding a knife in his hand and
    pointing it at the victims while also verbally threatening them, must be
    reduced to a conviction for mere brandishing. The Legislature did not intend
    such conduct to be prosecuted exclusively under Penal Code section 417; we
    will therefore not modify Lopez-Vinck’s convictions for felony assault with a
    deadly weapon to misdemeanor brandishing.
    C. Fines and fees
    Lopez-Vinck contends that the trial court violated his federal and state
    constitutional rights by imposing various fines and fees without first
    determining, under the authority announced in People v. Dueñas (2019)
    
    30 Cal.App.5th 1157
     (Dueñas), that Lopez-Vinck had the ability to pay those
    fines and fees.
    1. Additional background
    At the sentencing hearing, which occurred on March 7, 2019, the court
    imposed a $2,000 restitution fine under Penal Code section 1202.4,
    subdivision (b), a $2,000 parole revocation fine under Penal Code section
    1202.45, a $240 court operations assessment under Penal Code section
    1465.8, a $180 criminal conviction assessment under Government Code
    section 70373, a $154 criminal justice administration fee under former
    Government Code section 29550.1, a $39 theft fine under Penal Code section
    1202.5, and $72.99 in victim restitution to Kohl’s pursuant to Penal Code
    section 1202.4, subdivision (f). The court made no determination that Lopez-
    Vinck had the ability to pay these fines and fees, and Lopez-Vinck did not
    request that such a finding be made.
    At the time of sentencing, Lopez-Vinck was 28 years old. The probation
    report indicates that Lopez-Vinck graduated from high school in 2006 while
    incarcerated in a California Youth Authority facility. He has since been
    16
    employed at warehouses, in sales, and at fast food restaurants. Lopez-Vinck
    denied having assets or debts; prior to his arrest, he was receiving $300 per
    month in general relief and $200 per month in food stamps. The probation
    report does not identify any condition that would prohibit Lopez-Vinck from
    working.
    2. This contention has been forfeited
    Preliminarily, the People argue that Lopez-Vinck has forfeited his
    claim of error because his sentencing hearing took place on March 7, 2019,
    which was after the opinion in Dueñas was issued in January 2019.
    We agree that Lopez-Vinck has forfeited his contention under Dueñas.
    In general, a defendant who fails to object to the imposition of fines, fees, and
    assessments at sentencing forfeits the right to challenge those fines, fees, and
    assessments on appeal. (See, e.g., People v. Aguilar (2015) 
    60 Cal.4th 862
    ,
    864; People v. Trujillo (2015) 
    60 Cal.4th 850
    , 853–854; see also People v.
    Bipialaka (2019) 
    34 Cal.App.5th 455
    , 464; People v. Frandsen (2019)
    
    33 Cal.App.5th 1126
    , 1153–1155.) This is particularly so in a case such as
    this one, where the sentencing occurred after the Dueñas court declared a
    constitutional right to have a court determine the defendant’s ability to pay
    before imposing statutorily mandated fines and assessments. In addition,
    because the $2,000 restitution fine imposed by the trial court exceeded the
    $300 statutory minimum, Lopez-Vinck had the opportunity to object and
    argue that he was unable to pay it, but he did not do so, notwithstanding
    established statutory authorization for raising such a challenge (§ 1202.4,
    subd. (d)).5 By failing to raise the issue of his inability to pay the $2,000
    5     Section 1202.4, subdivision (d) provides that the court “shall consider
    any relevant factors, including, but not limited to, the defendant’s inability to
    17
    restitution fine, Lopez-Vinck forfeited any claim that the court violated his
    constitutional rights by imposing that fine, as well as the other fines and fees
    imposed by the court, without considering his ability to pay. (See People v.
    Miracle (2018) 
    6 Cal.5th 318
    , 356 [defendant forfeited challenge to restitution
    fine which exceeded statutory minimum by failing to object at sentencing];
    see also People v. Jenkins (2019) 
    40 Cal.App.5th 30
    , 40–41 [defendant had a
    statutory right to object to imposing of $9,700 of $10,000, and his failure to do
    so resulted in forfeiture of his claim under Dueñas that all of the assessments
    and fees imposed without an ability to pay hearing violated his right to due
    process].)
    Because Lopez-Vinck failed to raise the issue of his ability to pay in the
    trial court, he is precluded from raising an appellate challenge to the trial
    court’s imposition of fines, fees or assessments without an ability to pay
    hearing.
    3. Ineffective assistance
    Lopez-Vinck contends in the alternative that if this court concludes
    that he has forfeited his claim that the trial court erred in imposing the
    challenged fines and fees without determining his ability to pay them, then
    his trial counsel rendered ineffective assistance in failing to assert an
    objection on this ground.
    “ ‘The law governing [an ineffective assistance of counsel] claim is
    settled. “A criminal defendant is guaranteed the right to the assistance of
    counsel by both the state and federal Constitutions. [Citations.] ‘Construed
    in light of its purpose, the right entitles the defendant not to some bare
    assistance but rather to effective assistance.’ ” [Citations.] It is defendant’s
    pay,” in setting a fine in excess of $300, which is the minimum fine amount
    set in subdivision (b)(1) of the provision.
    18
    burden to demonstrate the inadequacy of trial counsel. [Citation.] We have
    summarized defendant’s burden as follows: “ ‘In order to demonstrate
    ineffective assistance of counsel, a defendant must first show counsel’s
    performance was “deficient” because his “representation fell below an
    objective standard of reasonableness . . . under prevailing professional
    norms.” [Citations.] Second, [a defendant] must also show prejudice flowing
    from counsel’s performance or lack thereof. [Citation.] Prejudice is shown
    when there is a “reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been different. A reasonable
    probability is a probability sufficient to undermine confidence in the
    outcome.” ’ ” [Citation.]’ ” (People v. Vines (2011) 
    51 Cal.4th 830
    , 875–876
    (Vines), overruled on another ground in People v. Hardy (2018) 
    5 Cal.5th 56
    ,
    104.)
    “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in
    examining a claim of ineffective assistance of counsel [citation], and there is a
    “strong presumption that counsel’s conduct falls within the wide range of
    reasonable professional assistance.” [Citation.] Defendant’s burden is
    difficult to carry on direct appeal, as we have observed: “ ‘Reviewing courts
    will reverse convictions [on direct appeal] on the ground of inadequate
    counsel only if the record on appeal affirmatively discloses that counsel had
    no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’
    [Citation.] If the record on appeal ‘ “ ‘sheds no light on why counsel acted or
    failed to act in the manner challenged[,] . . . unless counsel was asked for an
    explanation and failed to provide one, or unless there simply could be no
    satisfactory explanation,’ the claim on appeal must be rejected,” ’ and the
    ‘claim of ineffective assistance in such a case is more appropriately decided in
    a habeas corpus proceeding.’ ” (Vines, supra, 51 Cal.4th at p. 876.)
    19
    Lopez-Vinck has not met his burden to demonstrate either that his trial
    counsel’s performance was deficient, or that there is a reasonable probability
    that, but for counsel’s failure to object to the court’s failure to conduct an
    ability to pay inquiry, the result would have been different. As to the first
    point, the record does not reveal why defense counsel failed to request an
    ability to pay determination. As a result, “ ‘ “ ‘unless there simply could be no
    satisfactory explanation’ ” ’ ” for counsel’s failure to act (Vines, supra,
    51 Cal.4th at p. 876), we must reject Lopez-Vinck’s ineffective assistance of
    counsel claim. In this case, counsel could have reasonably concluded that,
    given this record, an ability to pay hearing would not have altered the court’s
    decision with respect to the fines and fees imposed. Specifically, the record
    demonstrates that Lopez-Vinck has an ability to pay the fines and fees
    imposed, based on his past income-earning capacity and financial means, as
    well as his ability to earn prison wages during his sentence. (See People v.
    Aviles (2019) 
    39 Cal.App.5th 1055
    , 1076 [“ ‘ “Ability to pay does not
    necessarily require existing employment or cash on hand.” [Citation.] “[I]n
    determining whether a defendant has the ability to pay a restitution fine, the
    court is not limited to considering a defendant’s present ability but may
    consider a defendant’s ability to pay in the future.” [Citation.] This
    include[s] the defendant’s ability to obtain prison wages’ ”].)
    The fact that there is evidence that Lopez-Vinck does have an ability to
    pay the imposed fines and fees also prevents Lopez-Vinck from being able to
    make the requisite showing of prejudice for purposes of an ineffective
    assistance of counsel claim. In essence, because there is evidence that Lopez-
    Vinck has an ability to pay the fines and fees, there is no reasonable
    probability that, but for counsel’s failure to request an ability to pay hearing,
    the trial court would have imposed fines and fees in a lesser amount. (See
    20
    People v. Johnson (2019) 
    35 Cal.App.5th 134
     [any error in imposing fines and
    fees without an ability to pay hearing was harmless because record showed
    that defendant had some financial means and past income-earning capacity,
    as well as an ability to earn prison wages]; see also People v. Jones (2019)
    
    36 Cal.App.5th 1028
    , 1035–1036 [same].)
    D. The minute order and abstract of judgment must be corrected to align
    with the trial court’s oral pronouncement of judgment and current law
    Lopez-Vinck argues that the minute order from the sentencing hearing
    and the abstract of judgment must be corrected to reflect the trial court’s oral
    pronouncement at sentencing that it would not impose a one-year prison
    prior.6 The People agree with this contention, acknowledging that the court
    indicated its intention not to impose a sentence with respect to Lopez-Vinck’s
    prison prior when the court stated, “And the Court will not impose the prison
    prior one year, also.” The People also concede that under a recent
    amendment to Penal Code section 667.5, subdivision (b), which became
    effective on January 1, 2020, one-year prison priors may not be imposed
    unless the prior offense was a sexually violent offense as defined in section
    6600 of the Welfare and Institutions Code, and that this ameliorative
    statutory amendment applies to nonfinal cases such as this one, where the
    defendant’s prior offense was not a sexually violence offense. The People
    agree that the minute order from the sentencing hearing date, as well as the
    abstract of judgment, both of which refer to the imposition and staying of a
    6      The minute order from the March 7, 2019 sentencing hearing includes
    a reference to the one-year prison prior, and below the reference includes the
    following typewritten notation: “1st Prison Prior as indicated above is stayed
    per the Court.” The abstract of judgment includes in the section titled
    “3. Enhancements” (capitalization omitted) a reference to the one-year prison
    prior, and indicates that the prison prior has been stayed.
    21
    one-year prison prior enhancement, should be corrected to reflect the court’s
    oral pronouncement of sentence, which included striking the one-year prison
    prior enhancement.
    We agree with the parties that the minute order and abstract of
    judgment must be corrected to reflect the striking—rather than the
    imposition and staying—of the one-year prison prior enhancement. We will
    therefore remand to the trial court with directions to correct both documents
    in this regard. (See People v. Mitchell (2001) 
    26 Cal.4th 181
    , 188 [appellate
    court may direct trial court to correct minute order and abstract of
    judgment].)
    E. Any portion of the criminal justice administration fee imposed that
    remained unpaid as of July 1, 2021 must be vacated
    As of July 1, 2021, the statutory provision pursuant to which the court
    ordered Lopez-Vinck to pay a $154 criminal justice administration fee was
    repealed (see former Government Code section 29550.1 (section 29550.1)),
    and newly-enacted Government Code section 6111 (section 6111) became
    effective.7 Section 6111 provides:
    “(a) On and after July 1, 2021, the unpaid balance of any
    court-imposed costs pursuant to Section 27712,
    subdivision (c) or (f) of Section 29550, and Sections 29550.1,
    29550.2, and 29550.3, as those sections read on June 30,
    2021, is unenforceable and uncollectible and any portion of
    a judgment imposing those costs shall be vacated.
    “(b) This section shall become operative on July 1, 2021.”
    7      These changes were enacted as a result of the Governor signing
    Assembly Bill No. 1869 into law. Effective July 1, 2021, Assembly Bill No.
    1869 eliminates many fines, fees, and assessments that courts have imposed
    under a variety of statutes. (Assem. Bill No. 1869 (2019–2020 Reg. Sess.)
    §§ 2, 62.)
    22
    Because this change in the law became effective well after the parties
    had submitted their briefs in this matter, we requested that the parties
    provide supplemental briefing on the question of the effect of the repeal of
    section 29550.1 on this pending appeal. In response to our supplemental
    briefing request, Lopez-Vinck argues that under the authority of In re
    Estrada (1965) 
    63 Cal.2d 740
     (Estrada), Assembly Bill No. 1869’s repeal of
    section 29550.1 entitles him to have the “portion of the judgment imposing
    [the $154 fee under section 29550.1] vacated.” The People argue that this
    court need not do anything in response to the change in the law because,
    “under the bill’s plain language and California Supreme Court precedent, the
    fee automatically became uncollectible starting July 1, 2021, without the
    involvement of the courts.” The People assert that “the fee was enforceable
    and collectible until June 30, after which date appellant was automatically
    entitled to relief.” The People therefore contend that this court should affirm
    the judgment with respect to the criminal justice administration fee.
    The issue raised by the enactment of Assembly Bill No. 1869 requires
    that we consider whether, and to what extent, the Legislature intended the
    new statutory scheme to apply to individuals whose nonfinal judgments
    include the imposition of fees that were repealed after sentence was imposed.
    Because these questions involve interpretation of a legislative enactment
    involving the repeal of one relevant provision (section 29550.1) as well as the
    addition of a new provision (section 6111), we rely on certain general rules
    governing statutory interpretation. A reviewing court’s construction of a
    statute is “ ‘guided by the overarching principle that [its] task “ ‘is to
    determine the intent of the enacting body so that the law may receive the
    interpretation that best effectuates that intent.’ ” ’ ” (In re R.V. (2015)
    23
    
    61 Cal.4th 181
    , 192.) First among the principles of statutory interpretation is
    honoring “ ‘ “the language of the statute” ’ ” as “ ‘construed in the context of
    the statute as a whole and the overall statutory scheme.’ ” (Robert L. v.
    Superior Court (2003) 
    30 Cal.4th 894
    , 901.) If the language of the statute is
    ambiguous, a court “can look to legislative history [citation] and to rules or
    maxims of construction” to resolve the ambiguity. (People v. Smith (2004)
    
    32 Cal.4th 792
    , 798.) Further, any ambiguities in a statute “are not
    interpreted in the defendant’s favor if such an interpretation would
    provide . . . a result inconsistent with apparent legislative intent.” (People v.
    Cruz (1996) 
    13 Cal.4th 764
    , 783.)
    In Estrada, the Supreme Court “considered the retroactive application
    of a statutory amendment that reduced the punishment prescribed for the
    offense of escape without force or violence.” (People v. Conley (2016)
    
    63 Cal.4th 646
    , 656 (Conley).) The Conley court summarized the rule set out
    in Estrada as follows:
    “ ‘The problem,’ we explained, ‘is one of trying to ascertain
    the legislative intent—did the Legislature intend the old or
    new statute to apply? Had the Legislature expressly stated
    which statute should apply, its determination, either way,
    would have been legal and constitutional.’ [Citation.] But
    in the absence of any textual indication of the Legislature’s
    intent, we inferred that the Legislature must have intended
    for the new penalties, rather than the old, to apply.
    [Citation] We reasoned that when the Legislature
    determines that a lesser punishment suffices for a criminal
    act, there is ordinarily no reason to continue imposing the
    more severe penalty, beyond simply ‘ “satisfy[ing] a desire
    for vengeance.” ’ [Citation.] Thus, we concluded, ‘[i]t is an
    inevitable inference that the Legislature must have
    intended that the new statute imposing the new lighter
    penalty now deemed to be sufficient should apply to every
    case to which it constitutionally could apply,’ including ‘to
    24
    acts committed before its passage[,] provided the judgment
    convicting the defendant of the act is not final.’ [Citation]”
    (Conley, supra, 63 Cal.4th at p. 656, italics added.)
    The Estrada rule, therefore, “rests on an inference that, in the absence
    of contrary indications, a legislative body ordinarily intends for ameliorative
    changes to the criminal law to extend as broadly as possible, distinguishing
    only as necessary between sentences that are final and sentences that are
    not.” (Conley, supra, 63 Cal.4th at p. 657.) It is clear, however, that “the
    Estrada rule reflects a presumption about legislative intent, rather than a
    constitutional command,” and, therefore, “the Legislature (or . . . electorate)
    may choose to modify, limit, or entirely forbid the retroactive application of
    ameliorative criminal law amendments if it so chooses.” (Conley, supra, at
    p. 656, italics added.)
    The voter enactment at issue in Conley, unlike the statute in Estrada,
    was “not silent on the question of retroactivity.” (Conley, supra, 63 Cal.4th at
    p. 657, italics added.) “Rather, the Act expressly addresses the question [of
    retroactivity] in section 1170.126, the sole purpose of which is to extend the
    benefits of the Act retroactively.” (Ibid.) The Conley court noted that, “[b]y
    its terms, the provision [addressing retroactivity] draws no distinction
    between persons serving final sentences and those serving nonfinal
    sentences, entitling both categories of prisoners to petition courts for recall of
    sentence under the Act.” (Ibid.)
    Assembly Bill No. 1869, like the enactment at issue in Conley, reflects a
    legislative intent to address retroactive application of its terms. Specifically,
    Assembly Bill No. 1869, through the enactment of section 6111, distinguishes
    between fees paid by convicted individuals pursuant to fee orders made under
    the repealed fee statutes prior to July 1, 2021, and those fees that remain
    25
    outstanding as of July 1, 2021. Assembly Bill No. 1869 makes the legislative
    intent clear, stating: “It is the intent of the Legislature to eliminate the
    range of administrative fees that agencies and courts are authorized to
    impose to fund elements of the criminal legal system and to eliminate all
    outstanding debt incurred as a result of the imposition of administrative fees.”
    (Assem. Bill No. 1869 (2019–2020 Reg. Sess.) § 2, italics added.) In order to
    eliminate the “outstanding debt incurred” by defendants as a result of the
    imposition of the repealed fee provisions, the Legislature enacted section
    6111, which provides in relevant part: “On and after July 1, 2021, the unpaid
    balance of any court-imposed costs pursuant to . . . Section 29550, and
    Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30,
    2021, is unenforceable and uncollectible and any portion of a judgment
    imposing those costs shall be vacated.” (§ 6111, subd. (a), italics added.) By
    specifying the precise date on which the costs that have been imposed on
    defendants pursuant to “Section 29550, and Sections 29550.1, 29550.2, and
    29550.3,” become unenforceable and uncollectible, the Legislature made clear
    that any amounts paid prior to that time need not be vacated, regardless of
    whether the sentence of the person on whom the costs were imposed is final.
    Because section 6111 indicates a legislative intent to extend the
    ameliorative changes in the law regarding the imposition of administrative
    fees to individuals serving both final and nonfinal sentences, but only to the
    extent of relieving those individuals of the burden of any debt that remains
    unpaid on and after July 1, 2021, the Estrada rule does not apply, and Lopez-
    Vinck is not entitled to have the fee imposed pursuant to Government Code
    section 29550.1 vacated in its entirety as a result of the repeal of section
    29550.1.
    26
    However, we do not agree with the People’s contention that affirmance
    of the judgment as it stands is appropriate. Pursuant to the express terms of
    section 6111, subdivision (a), Lopez-Vinck is entitled to the vacatur of that
    portion of the criminal justice administration fee imposed pursuant to
    Government Code section 29550.1 that remains unpaid as of July 1, 2021,
    and to the modification of his judgment consistent with such vacatur. Section
    6111, subdivision (a) provides not only that any costs imposed pursuant to
    the listed statutory provisions that remain unpaid on and after July 1, 2021
    are “unenforceable and uncollectible,” but also that “any portion of a
    judgment imposing those costs shall be vacated.” (§ 6111, subd. (a), italics
    added.) Thus, by its express terms, section 6111 envisions that the
    referenced costs are to be vacated, and it makes the vacatur mandatory
    through its use of the word “shall.” (See, e.g., Mostafavi Law Group, APC v.
    Larry Rabineau, APC (2021) 
    61 Cal.App.5th 614
    , 622 [noting that courts
    generally construe the word “shall” as mandatory].)8 Although section 6111’s
    reference to “those costs” is ambiguous, in that “those costs” could refer to the
    entirety of the fee imposed by the trial court, such that the vacating of “those
    8     We do not intend to suggest that an individual whose sentence is final
    must seek the vacatur of any unpaid fees from a court in order to obtain the
    ameliorative benefit of section 6111. By operation of law, any fees imposed
    pursuant to Sections 29550, 29550.1, 29550.2, and 29550.3 that remain
    unpaid as of July 1, 2021 are unenforceable and uncollectible. As a result,
    any individual whose sentence is final will not be required to pay the
    remaining balance of such fees, regardless of whether that remaining balance
    is formally vacated by a court. However, given the language of section 6111,
    a defendant whose judgment is on appeal and who requests the vacatur of
    any remaining unpaid fees is entitled to have vacated any portion of the fees
    imposed pursuant to any of the statutes identified in section 6111 that
    remain unpaid as of July 1, 2021, rather than having his sentence affirmed.
    27
    costs” would eliminate the fee in its entirety, we conclude that the statutory
    scheme supports interpreting the phrase “those costs” as referring only to
    that portion of fee imposed by the court that remains unpaid as of July 1,
    2021. (See Assem. Bill No. 1869 (2019–2020 Reg. Sess.) § 2 [intent of the
    Legislature is to “eliminate all outstanding debt incurred as a result of the
    imposition of administrative fees” (italics added)].)9 We therefore vacate any
    balance of the costs imposed by the court pursuant to Government Code
    section 29550.1 that remains unpaid as of July 1, 2021.
    IV.
    DISPOSITION
    The portion of criminal justice administration fee imposed by the court
    pursuant to Government Code section 29550.1 that remains unpaid as of
    July 1, 2021 is vacated. The judgment is affirmed as so modified.
    The matter is remanded to the trial court with directions to correct the
    March 7, 2019 minute order and the abstract of judgment to reflect the
    striking of the one-year prison prior enhancement. The court is further
    directed to amend the abstract of judgment to reflect the vacatur of any
    balance of the fee imposed pursuant to Government Code section 29550.1
    that remains unpaid as of July 1, 2021. The court shall forward a copy of the
    corrected abstract of judgment to the Department of Corrections and
    Rehabilitation.
    9      Lopez-Vinck appears to concede that he is entitled to the vacatur of
    only that portion of the fee that remains unpaid as of July 1, 2021, although
    he phrases his request for relief slightly differently: “Appellant . . .
    respectfully requests that this Court order the abstract of judgment amended
    to strike the fee and direct the trial court to vacate the portion of the
    judgment ordering collection of any unpaid debt related to that fee.”
    28
    AARON, Acting P. J.
    WE CONCUR:
    IRION, J.
    GUERRERO, J.
    29
    

Document Info

Docket Number: D077029

Filed Date: 9/15/2021

Precedential Status: Precedential

Modified Date: 9/15/2021